ENVIRONMENTAL IMPACT ASSESSMENT OF PROJECTS RULINGS OF THE COURT OF JUSTICE Justice2.indd 1 18/01/2011 15:14:50 Europe Direct is a service to help you nd answers to your questions about the European Union Freephone number (*): 00 800 6 7 8 9 10 11 (*) Certain mobile telephone operators do not allow access to 00 800 numbers or these calls may be billed. More information on the European Union is available on the Internet (http://europa.eu). © European Union, 2010 Reproduction is authorised provided the source is acknowledged. Printed in Belgium Justice2.indd 2 18/01/2011 15:14:50 ENVIRONMENTAL IMPACT ASSESSMENT OF PROJECTS RULINGS OF THE COURT OF JUSTICE Justice2.indd 3 18/01/2011 15:14:50 Justice2.indd 4 18/01/2011 15:14:50 Introduction About the EIA Directive The Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment 1 , as amended, known as the "EIA" (environmental impact assessment) Directive, requires that an environmental assessment to be carried out by the competent national authority for certain projects which are likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location, before development consent is given. The projects may be proposed by a public or private person. An assessment is obligatory for projects listed in Annex I of the Directive, which are considered as having significant effects on the environment. These projects include for example: long-distance railway lines, airports with a basic runaway length of 2 100 m or more, motorways, express roads, roads of four lanes or more (of at least 10 km), waste disposal installations for hazardous waste, waste disposal installations for non hazardous waste (with a capacity of more then 100 tonnes per day), waste water treatment plants (with a capacity exceeding 150 000 population equivalent). Other projects, listed in Annex II of the Directive, are not automatically assessed: Member States can decide to subject them to an environmental impact assessment on a case-by-case basis or according to thresholds or criteria (for example size), location (sensitive ecological areas in particular) and potential impact (surface affected, duration). The process of determining whether an environmental impact assessment is required for a project listed in Annex II is called screening. This particularly concerns for example the following projects: construction of railways and roads not included in Annex I, waste disposal installations and water treatment plants not including in Annex I, urban development projects, inland waterways, canalization and flood-relief works, changes or extensions of Annex I and II projects that may have adverse environmental effects 2 . The EIA Directive of 1985 has been amended three times, in 1997 3 , in 2003 4 and in 2009 5 :  Directive 97/11/EC brought the Directive in line with the Espoo Convention on EIA in a Transboundary Context. The Directive of 1997 widened the scope of the EIA Directive by increasing the types of projects covered, and the number of projects requiring mandatory environmental impact assessment (Annex I). It also provided for new screening arrangements, including new screening criteria (at Annex III) for Annex II projects, and established minimum information requirements.  Directive 2003/35/EC was seeking to align the provisions on public participation with the Aarhus Convention on public participation in decision-making and access to justice in environmental matters.  Directive 2009/31/EC amended the Annexes I and II of the EIA Directive, by adding projects related to the transport, capture and storage of carbon dioxide (CO 2 ). 1 OJ L 175, 5.7.1985, p.40. 2 For further information concerning the screening process see the EIA - Guidance on Screening – 2001: http://ec.europa.eu/environment/eia/eia-guidelines/g-screening-full-text.pdf 3 OJ L 73, 14.3.1997, p.5. 4 OJ L 156, 25.6.2003, p.17. 5 OJ L 140, 5.6.2009, p.114. 1 List of time-limits for transposition into national law Directive Time-limit for transposition 85/337/EEC 3 July 1988 97/11/EC 14 March 1999 2003/35/EC 25 June 2005 2009/31/EC 25 June 2011 The environmental impact assessment must identify the direct and indirect effects of a project on the following factors: human beings, the fauna, the flora, the soil, water, air, the climate, the landscape, the material assets and cultural heritage, as well as the interaction between these various elements. The developer (the person who applied for development consent or the public authority which initiated the project) must provide the authority responsible for approving the project with the following information as a minimum: a description of the project (location, design and size); possible measures to reduce significant adverse effects; data required to assess the main effects of the project on the environment; the main alternatives considered by the developer and the main reasons for this choice; a non-technical summary of this information. With due regard for rules and practices regarding commercial and industrial secrecy, this information must be made available to interested parties sufficiently early in the decision-making process:  the competent environmental authorities likely to be consulted on the authorisation of the project;  the public, by the appropriate means (including electronically) at the same time as information (in particular) on the procedure for approving the project, details of the authority responsible for approving or rejecting the project and the possibility of public participation in the approval procedure;  other Member States, if the project is likely to have transboundary effects. Each Member State must make this information available to interested parties on its territory to enable them to express an opinion. Reasonable time-limits must be provided for, allowing sufficient time for all the interested parties to participate in the environmental decision-making procedures and express their opinions. These opinions and the information gathered pursuant to consultations must be taken into account in the approval procedure. At the end of the procedure, the following information must be made available to the public and transmitted to the other Member States concerned:  the approval or rejection of the project and any conditions associated with it;  the principal arguments upon which the decision was based after examination of the results of the public consultation, including information on the process of public participation;  any measures to reduce the adverse effects of the project. In accordance with national legislation, Member States must ensure that the interested parties can challenge the decision in court. About the Court For the purpose of European construction, the Member States concluded treaties creating first the European Communities and subsequently the European Union (EU), with institutions which adopt laws in specific fields. The Communities therefore produce their own legislation, known as regulations, directives and decisions. To ensure that the law is enforced, understood and uniformly applied in all Member States, a judicial institution is essential. That institution is the Court of Justice of the European Union. 2 The Court constitutes the judicial authority of the EU and, in cooperation with the courts and tribunals of the Member States, it ensures the uniform application and interpretation of EU law. The Court of Justice of the European Union, which has its seat in Luxembourg, consists of three courts: the Court of Justice, the General Court 6 (created in 1988) and the Civil Service Tribunal 7 (created in 2004). The Court of Justice has jurisdiction on various categories of proceedings 8 . Rulings which are mentioned in this booklet come from actions for failure of Member States to fulfil obligations or from references for a preliminary ruling.  Actions for failure to fulfil obligations - These actions enable the Court of Justice to determine whether a Member State has fulfilled its obligations under EU law. Before bringing the case before the Court of Justice, the Commission conducts a preliminary procedure in which the Member State concerned is given the opportunity to reply to the complaints addressed to it. If that procedure does not result in the Member State terminating the failure, an action for infringement of EU law may be brought before the Court of Justice. The action may be brought by the Commission - as, in practice, is usually the case - or by a Member State. If the Court finds that an obligation has not been fulfilled, the State must bring the failure to an end without delay. If, after a further action is brought by the Commission, the Court of Justice finds that the Member State concerned has not complied with its judgment, it may impose on it a fixed or periodic financial penalty. However, if measures transposing a directive are not notified to the Commission, it may propose that the Court impose a pecuniary penalty on the Member State concerned, once the initial judgment establishing a failure to fulfil obligations has been delivered.  References for a preliminary ruling - The Court of Justice cooperates with all the courts of the Member States, which are the ordinary courts in matters of EU law. To ensure the effective and uniform application of EU legislation and to prevent divergent interpretations, the national courts may, and sometimes must, refer to the Court of Justice and ask it to clarify a point concerning the interpretation of EU law, so that they may ascertain, for example, whether their national legislation complies with that law. A reference for a preliminary ruling may also seek the review of the validity of an act of EU law. The Court of Justice's reply is not merely an opinion, but takes the form of a judgment or reasoned order. The national court to which it is addressed is, in deciding the dispute before it, bound by the interpretation given. The Court's judgment likewise binds other national courts before which the same problem is raised. It is thus through references for preliminary rulings that any European citizen can seek clarification of the EU rules which affect him. Although such a reference can be made only by a national court, all the parties to the proceedings before that court, the Member States and the institutions of the EU may take part in the proceedings before the Court of Justice. In that way, several important principles of EU law have been laid down by preliminary rulings, sometimes in reply to questions referred by national courts of first instance. 6 The General Court has jurisdiction to hear: direct actions brought by natural/legal persons against acts of the institutions, bodies, offices or agencies of the EU (which are addressed to them or are of direct and individual concern to them) and against regulatory acts (which concern them directly and which do not entail implementing measures) or against a failure to act on the part of those institutions, bodies, offices or agencies; actions brought by the Member States against the Commission; actions brought by the Member States against the Council relating to acts adopted in the field of State aid, ‘dumping' and acts by which it exercises implementing powers; actions seeking compensation for damage caused by the institutions of the EU or their staff; actions based on contracts made by the EU which expressly give jurisdiction to the General Court; actions relating to Community trade marks; appeals, limited to points of law, against the decisions of the EU Civil Service Tribunal; actions brought against decisions of the Community Plant Variety Office or of the European Chemicals Agency. 7 The Civil Service Tribunal resolves disputes between the European institutions and their officials and servants. 8 The various types of proceedings of the Court of Justice include: references for preliminary rulings; actions for failure of Member States to fulfil obligations under EU law; actions for annulment; actions for failure to act; appeals; reviews. 3 About the booklet The Court of Justice plays an important role in implementation, application and interpretation of the EIA Directive, therefore knowledge of its judgements is necessary for proper understanding of substance and aims of the EIA Directive. The purpose of this booklet is to have a collection of the most important rulings of the European Court of Justice related to crucial articles of the EIA Directive. The Commission's services will update this booklet regularly to take into account recent rulings of the Court of Justice. Following the entry into force of the Treaty of Lisbon on 1 December 2009, the EU now has legal personality and has acquired the competences previously conferred on the European Community. Community law has therefore become EU law, which also includes all the provisions previously adopted under the Treaty on EU as applicable before the Treaty of Lisbon. In the booklet, the term ‘Community law' will nevertheless be used where reference is being made to the case-law of the Court of Justice before the entry into force of the Treaty of Lisbon. The first part of this booklet summarises statements of the Court of Justice which can be considered as general principles of the EIA Directive or of the EU law as a whole. The second part contains statements of the Court, as they were pronounced in each particular case, concerning appropriate articles of the EIA Directive. The Annex contains the main Judgments of the Court of Justice mentioned in the booklet sorted by the date of publication. In addition, references for a preliminary ruling are sometimes accompanied by information related to the national judgment which has provided grounds for a reference to the Court, as well as by a summary of the final judgment of the national courts following the Court ruling. 4 PART I General Principles EU directives lay down certain end results that must be achieved in every Member State. National authorities have to adapt their laws to meet these goals, but are free to decide how to do so. Each directive specifies the date by which the national laws must be adapted - giving national authorities the room for manoeuvre within the deadlines necessary to take account of differing national situations. Directives are used to bring different national laws into line with each other, and are particularly common in matters that affect the operation of the single market (e.g. product safety standards) or the protection of the environment. According to the case-law of the Court: Transposition of a directive The transposition of a directive into domestic law does not necessarily require the provisions of the directive to be enacted in precisely the same words in a specific, express provision of national law and a general legal context may be sufficient if it actually ensures the full application of the directive in a sufficiently clear and precise manner. The provisions of a directive must be implemented with unquestionable binding force and with the specificity, precision and clarity required in order to satisfy the need for legal certainty, which requires that, in the case of a directive intended to confer rights on individuals, the persons concerned must be enabled to ascertain the full extent of their rights. (C-332/04, Commission v. Spain, paragraph 38; C-427/07, Commission v. Ireland, paragraphs 54-55) Burden of proof While, in proceedings under Article 226 EC [Article 258 TFEU] for failure to fulfil obligations, it is incumbent upon the Commission to prove the allegation and to place before the Court the information needed to enable the Court to establish that an obligation has not been fulfilled, in doing which the Commission may not rely on any presumption, it is also for the Member States, under Article 10 EC [Article 4(3) TEU], to facilitate the achievement of the Commission’s tasks, which consist in particular, pursuant to Article 211 EC [Article 17(1) TEU], in ensuring that the provisions of the EC Treaty and the measures taken by the institutions pursuant thereto are applied. It is indeed for those purposes that a certain number of directives impose upon the Member States an obligation to provide information. (C-427/07, Commission v. Ireland, paragraphs 105-106) Information on transposition to be supplied by the Member States The information which the Member States are thus obliged to supply to the Commission must be clear and precise. It must indicate unequivocally the laws, regulations and administrative provisions by means of which the Member State considers that it has satisfied the various requirements imposed on it by the directive. In the absence of such information, the Commission is not in a position to ascertain whether the Member State has genuinely implemented the directive completely. The failure of a Member State to fulfil that obligation, whether by providing no information at all or by providing insufficiently clear and precise information, may of itself justify recourse to the procedure under Article 226 EC [Article 258 TFEU] in order to establish the failure to fulfil the obligation. Moreover, although the transposition of a directive may be carried out by means of domestic legal rules already in force, the Member States are not, in that event, absolved from the formal obligation to inform the Commission of the existence of those rules so that it can be in a position to assess whether the rules comply with the directive. (C-427/07, Commission v. Ireland, paragraphs 107-108) 5 Transposition by the federated/regional authorities The fact that a Member State has conferred on its regions the responsibility for giving effect to directives cannot have any bearing on the application of Article 226 EC [Article 258 TFEU]. A Member State cannot plead conditions existing within its own legal system in order to justify its failure to comply with obligations and time-limits resulting from Community directives. While each Member State may freely allocate internal legislative powers as it sees fit, the fact remains that it alone is responsible towards the Community under Article 226 EC [Article 258 TFEU] for compliance with obligations arising under Community law. The fact that proceedings have been brought before a national court to challenge the decision of a national authority which is the subject of an action for failure to fulfil obligations and the decision of that court not to suspend implementation of that decision cannot affect the admissibility of the action for failure to fulfil obligations brought by the Commission. The existence of remedies available through the national courts cannot in any way prejudice the bringing of an action under Article 226 EC [Article 258 TFEU], since the two procedures have different objectives and effects. (C-87/02, Commission v. Italian Republic, paragraphs 38, 39) Scope and purpose of the EIA Directive The wording of the EIA Directive indicates that it has a wide scope and a broad purpose. (C-72/95, Kraaijeveld and Others, paragraphs 31, 39; C-435/97, WWF and Others, paragraph 40; C-2/07, Abraham and Others – Liège airport, paragraph 32) Uniform interpretation and application of EU law Interpretation of a provision of Community law involves a comparison of the language versions. In the case of divergence between them, the need for a uniform interpretation of those versions requires that the provision in question be interpreted by reference to the purpose and general scheme of the rules of which it forms part. (C-72/95, Kraaijeveld and Others, paragraph 28; C-332/04, Commission v. Spain, paragraphs 47-52) The need for uniform application of Community law and the principle of equality require that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community; that interpretation must take into account the context of the provision and the purpose of the legislation in question. (C-287/98, Linster, paragraph 43) Right of individuals to rely on the EIA directive and invoke it before national courts As regards the right of individuals to rely on a directive and of the national court to take it into consideration, it would be incompatible with the binding effect conferred on directives by that provision to exclude, as a matter of principle, any possibility for those concerned to rely on the obligation which directives impose. Particularly where the Community authorities have, by directive, imposed on Member States the obligation to pursue a particular course of conduct, the effectiveness of such an act would be diminished if individuals were prevented from relying on it in legal proceedings and if national courts were prevented from taking it into consideration as a matter of Community law in determining whether the national legislature, in exercising its choice as to the form and methods for implementing the directive, had kept within the limits of its discretion set by the directive. (C-72/95, Kraaijeveld and Others, paragraph 56: C-435/97, WWF and Others, paragraph 69; C-287/98, Linster, paragraph 32, C-201/02, Wells, paragraph 57) 6 [...]... assessment – information to be provided by the developer The EIA Directive adopts an overall assessment of the effects of projects or the alteration thereof on the environment It would be simplistic and contrary to that approach to take account, when assessing the environmental impact of a project or of its modification, only of the direct effects of the works envisaged themselves, and not of the environmental. .. assessment of the effects of projects or the alteration thereof on the environment It would be simplistic and contrary to that approach to take account, when assessing the environmental impact of a project or of its modification, only of the direct effects of the works envisaged themselves, and not of the environmental impact liable to result from the use and exploitation of the end product of those works (C-2/07,... enable the public concerned in the territory of the affected Member State to participate effectively in the environmental decision-making procedures referred to in Article 2(2) for the project According to the case-law of the Court: Overall environmental assessment for projects which extend to the territory of a number of Member States The EIA Directive adopts an overall assessment of the effects of projects. .. in the first, second and third indents According to the case-law of the Court: Content of the EIA It should be noted that Article 3 of Directive 85/337/EEC as amended refers to the contents of the environmental impact assessment, which includes a description of direct and indirect effects of a project on factors listed in the first three indents of this Article and the interaction between them The. .. cumulative effects The purpose of the EIA Directive cannot be circumvented by the splitting of projects and the failure to take account of the cumulative effect of several projects must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment within the meaning of Article 2(1) of the EIA Directive... consent, of the reasons justifying the exemption granted, and provide it with the information made available, where applicable , to their own nationals The Commission shall immediately forward the documents received to the other Member States The Commission shall report annually to the Council on the application of this paragraph According to the case-law of the Court: The fundamental objective of the EIA... interfere with the objective of the EIA Directive Its effectiveness would be seriously compromised if the competent authorities of a Member State could, when deciding whether a project must be the subject of an environmental impact assessment, leave out of consideration that part of the project which is located in another Member State That finding is strengthened by the terms of Article 7 of the EIA Directive,... environmental assessments in the case of projects listed in Annex I of the directive where: - the projects have already been the subject of a consent granted prior to 3 July 1988, the date by which the directive was to have been transposed into national law, - the consent was not preceded by an environmental assessment in accordance with the requirements of the directive and no use was made of it, and... procedure The requirements which such a provision and the process under which it has been adopted must satisfy in order that the objectives of the Directive, including that of supplying information, can be regarded as achieved consist in the adoption of the project by a specific legislative act which includes all the elements which may be relevant to the assessment of the impact of the project on the environment... in environmental decisionmaking subject to the provisions of this Article According to the case-law of the Court: Timing of the consultations – status of the opinions While Article 6(1) and (2) of the EIA Directive require Member States to hold a consultation procedure, in which the authorities likely to be concerned by the project and the public are invited, respectively, to give their opinion, the . is being made to the case-law of the Court of Justice before the entry into force of the Treaty of Lisbon. The first part of this booklet summarises statements of the Court of Justice which can. understanding of substance and aims of the EIA Directive. The purpose of this booklet is to have a collection of the most important rulings of the European Court of Justice related to crucial articles of. acknowledged. Printed in Belgium Justice2 .indd 2 18/01/2011 15:14:50 ENVIRONMENTAL IMPACT ASSESSMENT OF PROJECTS RULINGS OF THE COURT OF JUSTICE Justice2.indd 3 18/01/2011 15:14:50 Justice2 .indd 4 18/01/2011